Why Lemak Has Long Odds with Rare Insanity Defense

Her defense for killing three children is that she was insane at the time and could not comprehend her own actions.

Her trial begins today with jury selection, which is expected to last until Thanksgiving. And a verdict may not be reached until next year.

That jury will be asked to wade through testimony from at least six psychiatrists and mental-health experts who will argue whether the Naperville mother was so impaired that she did not know right from wrong.

There's little doubt something was wrong. Lemak had struggled with depression and anxiety for years. She was taking anti- depressant medication. Her marriage was ending. Her physical appearance had changed drastically, her weight in constant fluctuation.

But was she insane on March 4, 1999, when she drugged and suffocated her three children, one by one, then tried to commit suicide? Prosecutors argue the crimes were premeditated and fit a manipulative pattern.

Combating that argument through an insanity defense is tough. Laws have tightened the definition of when mental illness can excuse a crime.

Moreover, experts say, jurors are reluctant to exonerate specific acts based on something as abstract as psychology.

And, perhaps not insignificantly, such defenses are rare.

One study found the insanity defense is pursued about eight to 11 times for every 1 million crimes.

"It is used in one-quarter of 1 percent of all felonies, and is successful in one-third of those one-quarter, which gets us down to one-twelfth. And in 90 percent of those, the prosecutor and defense agree," noted Michael Perlin, a professor at New York Law School who wrote a book on the subject in 1995.

One reason for the hesitancy is the nature of jurors.

"We don't want to say to anybody that they are 'not guilty' of something we know they did," Perlin said. "We believe it's a moral failing on their part. So, it's a hard defense to sell."

Jurors also fear insane people will be set free. In reality, however, studies show defendants acquitted in insanity cases and sent to mental hospitals end up spending more time confined than if they had been convicted and sent to prison.

Some argue John Hinckley, found not guilty by reason of insanity for his attempt to assassinate President Ronald Reagan in 1981, might be out of prison today had he been convicted. Instead, Hinckley remains confined to St. Elizabeth's Hospital in Washington, D.C.

Some legal experts attribute public outrage over the Hinckley verdict as the reason many states, including Illinois, have narrowed the definition for when insanity excuses a crime.

Today, Lemak's defense team has to show not only that she was mentally ill at the time of the killings, the law also requires proof that because of her mental disease, she lacked the ability to understand that her conduct was criminal. …

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